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Satya Charan Mitter Vs. Emperor - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal586,94Ind.Cas.266
AppellantSatya Charan Mitter
RespondentEmperor
Cases ReferredEmpress v. Nilmadhub Mitter
Excerpt:
calcutta police act (v of 1866), section 78-a - procedure in police investigation--inherent powers of police. - .....but the real point that we have got to decide is based on a consideration of the powers of the calcutta police under the calcutta police act. the facts being as i have stated they clearly show that section 162, cr. p.c., does not directly apply, for the investigation that was directed was carried on by the calcutta police under the provisions of the calcutta police act, and it appears that what happened was that after the chief presidency magistrate made his order the petitioner's son having been already arrested the police officer went to the petitioner and took from him. a statement which is now sought to be used in evidence against the petitioner, and on the strength of which he was committed by the magistrate for trial at the sessions, it being admitted that apart from this.....
Judgment:

Ewart Greaves, J.

1. This Rule was granted by my learned brother Mr. Justice C. C. Ghose sitting with Mr. Justice Mukerji and the object of the Rule was to secure the quashing of an order of commitment passed by the Chief Presidency Magistrate of Calcutta. The statement contained in the petition upon which the Rule is based is that on the 10th November one Girija Bhusan Sarkar on behalf of his mother-in-law preferred a complaint before the Chief Presidency Magistrate, Calcutta, charging the petitioner and the petitioner's son and another person with forgery, cheating, theft etc., and it is said that the Chief Presidency Magistrate, therefore, took cognizance of the complaint under Section 190, Cr. P.C., examined the complainant under Section 200 and directed an enquiry under Section 202 and that under these circumstances a certain statement which was taken from the petitioner by an Investigating Police Officer is not admissible in evidence under the provisions of Section 162 of the Cr. P.C. I do not think, however, that this contention is well-founded. If one turns to the original application which was made to the Chief Presidency Magistrate one finds that it is made in general terms. It stated that a certain Satya Charan Mitter died and that he was the holder of certain Government securities and that some difficulties having arisen after his death with regard to these securities it was necessary that certain enquiries should be made, and the actual application that was made to the Chief Presidency Magistrate was for a stop order in respect of the securities referred to in the petition and for a direction on the C. I. D. Police to make enquiry into the matter. The order passed on that application by the Chief Presidency Magistrate was to send the matter to the C. I. D. for enquiry and report, and with regard to the stop order the Magistrate stated that the evidence is not sufficient to justify the order at that stage. I think, therefore, that the arguments based on the contention to which I have referred are not well-founded and that the Chief Presidency Magistrate was merely acting under the provisions of Section 155 (3) of the Cr. P.C., which empower the Magistrate to order an investigation in the terms stated in the section. But the real point that we have got to decide is based on a consideration of the powers of the Calcutta Police under the Calcutta Police Act. The facts being as I have stated they clearly show that Section 162, Cr. P.C., does not directly apply, for the investigation that was directed was carried on by the Calcutta Police under the provisions of the Calcutta Police Act, and it appears that what happened was that after the Chief Presidency Magistrate made his order the petitioner's son having been already arrested the Police Officer went to the petitioner and took from him. a statement which is now sought to be used in evidence against the petitioner, and on the strength of which he was committed by the Magistrate for trial at the Sessions, it being admitted that apart from this statement obtained from the petitioner the evidence on the record is not sufficient to justify the committal, and indeed the Magistrate very frankly so states. Turning to the provisions of Section 78-A of the Calcutta Police Act, which is the Act applicable as the Cr. P.C. does not apply to the Calcutta Police except as expressly indicated in that Act, one finds that according to the provisions of Section 78-A (1) the Commissioner of Police, if in the course of any investigation he thinks a cognizable offence has been committed can by an order in writing require the attendance before himself or any officer serving under him not below the rank of an Inspector, who is investigating a cognizable offence, of a person within the limits of Calcutta or within a radius of 30 miles. Sub-section (2) provides that the Commissioner of Police can examine orally the person who attends in accordance with the order passed under Section 78 A (1) and that the person so attending is bound to answer all questions. Then comes Sub-section (3). That provides that the Commissioner of Police may forward to the Superintendent of Police of the District in which any person from whom any information is required relating to the facts or circumstances of the case under investigation is believed to be, such questions and such statement as may be necessary for the purpose of obtaining the information desired, that is to say, the scheme of Section 78-A in my reading of the section is to enable the Commissioner of Police to procure the attendance before him or any officer deputed in that behalf of any person for the purpose of obtaining information from such person; and as I have already stated Sub-section (2) authorises the oral examination of the person whose attendance is procured. Then under Sub-section (3) the Commissioner of Police is empowered to obtain the assistance of the Superintendent of Police in a District outside Calcutta for the purpose of having questions put to a person from whom information is desired but who for some reason cannot attend. As I understand Section 78A (1) and (2) the attendance and questionings are intended to take place within the Presidency Town itself; and Sub-section (3) only comes into force if for some reason it is difficult or unadvisable to require the attendance of the person from whom information is desired within the precincts of the Presidency Town itself. Now what the Investigating Officer apparently did in this case was to go to Howrah and take from the petitioner a statement which contains the evidence upon which the committed order has been made by the Magistrate. I do not think, therefore, that he was acting under the provisions of either Section 78A (1) or (2), nor do I think that he was in fact acting under the provisions of Section 78-A (3), for I do not understand that any requisition was made to the Superintendent of Police of Howrah for the purpose of procuring the information which was desired, and if in fact the Investigating Officer had been acting under the provisions of Sub-section (3) he would by virtue of Clause (3) of the Police Act III of 1888, be acting under the direction of the Superintendent of Police of Howrah and the matter would accordingly be governed by the provisions of Section 162 of the Cr. P.C., for that Act, of course, applies to Howrah. I think, therefore, we are met with this difficulty that if what the Police Officer says he did falls within Section 78A (3) then Section 162, Cr. P.C., applies for the reasons I have indicated. But, in my opinion, the Investigating Officer was not acting under Section 78-A at all, and the question, therefore, we have got to see is whether he was justified in the course which he took, and whether the statement which he took from the petitioner is under the circumstances admissible in evidence.

2. It is suggested by the Advocate-General that the Calcutta Police Act does not contain all the powers vested in the Calcutta Police and then there are in existence certain Circular Orders which give or may give wider powers in this matter than are contained in Section 78-A, but no such order has been produced before us and I do not think we are justified in assuming that such an order exists. Then a further contention is urged before us. It is said that the power to investigate contains an inherent power to take a statement such as this and that accordingly under the general law this particular statement is admissible in evidence against the accused, and we are referred in support of this argument to the case of Queen-Empress v. Nilmadhub Mitter 15 C. 595 : 7 Ind. Dec. (N.S.) 980 (F.B.), which is a decision of the Full Bench of this Court, as an authority for the proposition that there are certain powers inherent in the Police which are not expressly set out in the four corners of the Calcutta Police Act; for instance, it is said that there is no provision in the Calcutta Police Act providing for the taking of confessions; and yet according to the decision of the Full Bench the confession that was taken in that case was admitted in evidence although as I have stated there was no power to take confession expressly included within the provisions of the Calcutta Police Act. But in that case the confession was taken within the town of Calcutta itself and consequently that case cannot be prayed in aid to support the procedure adopted here. And we are not prepared to assent to the proposition that in criminal matters there is this inherent power such as the Advocate-General contends exists. All investigations by the Police, it seems to me, must be controlled, in the mofussil, by the Code of Criminal Procedure and in Calcutta by the Police Act itself or by any Circular Orders issued. I am not prepared to say that in a matter of this nature we can safely import a power such as the Advocate-General seeks to import of taking statements generally by the Police apart from the provisions of any Act and then put the statements so taken in evidence against the person by whom they were made. I think that would be to strike at the principles, to preserve which the provisions of Section 162, Cr. P. C, were enacted and would introduce a very dangerous principle.

3. For the reasons, therefore, we have indicated I think the Rule should be made absolute and the commitment order of the petitioner should be quashed.

C.C. Ghose, J.

4. I agree.


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